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03/01/2018

FY 2017 EPA Enforcement Results Show Drop in EPA Inspections

On February 8, 2018, U.S EPA (EPA)announced its annual enforcement and compliance results for fiscal year (FY) 2017, ending on September 30. The 2017 report covers the last quarter of the Obama administration and the first three quarters of the Trump administration. The report is presented online, primarily as a series of graphs and interactive maps, with limited interpretation provided. Add to this, the change in administration, the fact that the penalties and cost recovery numbers can be heavily skewed by a few large cases such as Volkswagen, the reliance on State programs, and the results can be difficult to interpret. States and tribes are often authorized to be the primary implementers of federal environmental law. The annual enforcement report is therefore not a report on the country as a whole, but rather U.S. EPA activities and results.

Overall, the FY 2017 report shows a drop in many of the enforcement metrics, including facility inspections. Unlike the majority of metrics presented in the report, the number of facility inspections and evaluations conducted in a given year is relatively free of spin and is the easiest of the metrics to track and understand. On that front, EPA conducted approximately 11,700 inspections/evaluations in FY 2017, a reduction of 13 percent over the previous year. It should be noted, however, that this decrease in the number of inspections/evaluations began in FY 2013 and has continued each year since then. Several other related metrics include:

Number of environmental crime cases opened continued the downward trend which began in 2011. This decrease is explained as a focus on fewer larger, more complex cases.

Number of both initiations and conclusions of civil enforcement cases dropped in 2017 (after increasing slightly during FY 2015 and 2016) as part of an overall eight-year decrease.

Given the Trump Administration’s budget plans for EPA and the likely further reduction in staffing, it is expected that this trend will continue.

On the cleanup front, FY 2017 saw an increase in commitments to Superfund site cleanups and reimbursements. Commitments in the volume of contaminated groundwater to be cleaned up also increased in FY 2017. This increase in Superfund commitments is consistent with EPA Administrator Scott Pruit’s focus on the Superfund cleanup program, however, it is not clear how much of the increase is due to the prior administration’s efforts.

Of particular interest is the following statement provided as the last sentence of the press release:

“Also, EPA is developing measures to fully capture all the enforcement and compliance assistance work the Agency undertakes by tracking, informal, as well as formal, enforcement and compliance actions and support to states.”

This statement seems to be in response to EPA’s plans to launch pilot projects using informal enforcement actions aimed at immediate compliance without waiting for formal litigation. This may come as good news to industry, but for those trying to track enforcement result, it will only complicate things in the future.